Protecting the Right to Housing during the COVID-19 Crisis - BRIEFING PAPER
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BRIEFING PAPER Protecting the Right to Housing during the COVID-19 Crisis
Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
PREFACE
The Open Society Justice Initiative promotes human rights and builds legal
capacity for open societies using a variety of tools, including strategic litigation,
legal empowerment, advocacy, and research. For the past five years, the Justice
Initiative’s Economic Justice Project1 has focused on promoting the application
of European human rights and consumer law to prevent evictions resulting from
mortgage default.
With the spread of COVID-19 and its economic consequences, even more
families and individuals face the risk of losing their homes through eviction. In
examining the actions States have taken to help people stay in their homes during
the COVID-19 crisis, it became apparent that States were taking a piecemeal
approach, with some protecting people in rented housing but not those in
mortgaged housing, while other States were protecting mortgaged housing but
not rental housing. In addition, some States passed laws to prevent evictions while
others simply relied upon voluntary agreements that were not legally enforceable.
Further, the majority of these measures have expired or are scheduled to expire by
the end of the year.
This briefing paper highlights the patchwork approach that States across the world
have taken in order to protect the right to housing during the COVID-19 crisis,
and examines the need for more comprehensive emergency legislation to prevent
evictions during a global pandemic.
To provide activists and legislators with a blueprint for establishing basic legal
provisions to ensure respect for the right to housing during the COVID-19
pandemic and the economic crisis that has ensued, the Justice Initiative,
in collaboration with leading housing rights experts, has developed model
emergency housing legislation. States are strongly urged to consider implementing
legislation to protect the right to housing during the current crises.
This briefing paper was researched and written by Georgiana Epure, Aryeh Neier
Fellow for the Open Society Justice Initiative, under the supervision of Senior
Legal Officer Marguerite Angelari. The paper benefitted from the review and input
from the following Justice Initiative colleagues: Robert Varenik, Erika Dailey, Zsolt
Bobis, and David Berry. The Justice Initiative is grateful for the valuable expert
feedback received from Leilani Farha, Julieta Perucca, Sam Freeman, Padraic
Kenna, and Cecilia Forrestal.
For more information about the Justice Initiative’s economic justice work, please contact
Marguerite Angelari at marguerite.angelari@opensocietyfoundations.org.
Open Society Foundations 2Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
INTRODUCTION
The global COVID-19 crisis has proven beyond doubt that secure, safe, and
adequate housing is essential for people’s health and safety. To control the spread
of COVID-19, people across the globe have been urged or required to stay at
home. This seemingly simple policy has revealed just how dependent the rights to
life, human security, health, and dignity are on access to adequate housing.
At the same time, the COVID-19 pandemic and the resulting economic crisis have
put a large number of people in a precarious situation in which they are struggling
to meet their housing costs and are vulnerable to homelessness. COVID-19 has
fully exposed, and has the potential to deepen, the global housing crisis. For
years, this crisis has been characterized by a severe lack of affordable housing,
weak tenant protections, limited social or public housing, and inadequate housing
for migrants and asylum seekers. Abusive mortgage lending practices and the
failure to regulate the financialization of housing have consolidated a system that
reproduces housing precariousness and homelessness.
Soon after the World Health Organization declared COVID-19 a global pandemic
in March 2020 and some countries went into lockdown, the then United Nations
Special Rapporteur on the right to adequate housing, Leilani Farha, issued a series
of COVID-19 Guidance Notes to protect the right to housing.2 This briefing paper
highlights the most important recommendations in those Guidance Notes and
provides a snapshot of the most common measures that States adopted at the
beginning of the crisis to keep people in their homes. These common measures
include: eviction bans, mortgage payment deferrals, protection of tenants in rental
housing, and addressing the housing needs of people living in homelessness and
informal settlements, as well as those of migrants and asylum seekers.3
The response to the COVID-19 crisis could have been a watershed moment for
housing justice. Yet, as the current UN Special Rapporteur on the right to adequate
housing, Balakrishnan Rajagopal, highlights in his latest report, in spite of the
pandemic, “housing is not yet seen as a life-or-death issue.”4 Measures that were
considered impossible before the pandemic—such as providing shelter for nearly
all people sleeping rough in large cities, freezing rent prices, and ensuring access
to water and sanitation facilities in informal settlements—became a reality in
some jurisdictions for at least a short period of time. Some States have shown that
with an adequate mobilization of resources and political will, they can at least
temporarily house people who are homeless, provide water and sanitation services
to those without, and prevent people from being evicted or losing their homes.
Nonetheless, a piecemeal approach was taken domestically and recurring issues
that threaten secure housing have emerged in most States globally. In the face
of the pandemic, governments suddenly saw the holes in their housing systems
and tried to close up some of the most urgent and immediate gaps. Some States
Open Society Foundations 3Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
put homeless people in hotels. Some provided water and sanitation to informal
settlements. Some States protected people at risk of eviction in rented housing and
not mortgaged housing. Some States passed laws to allow for mortgage payment
postponement, whereas others did not or simply relied upon voluntary agreements
that were not legally enforceable. Some did nothing at all. But regardless of the
approach taken, the majority of these measures have expired or were scheduled
to terminate by the end of 2020 despite the near-certainty of COVID-19’s
continued spread.
In providing an overview of the most common measures that States undertook
to protect people from losing their homes during the COVID-19 crisis, this paper
emphasizes the need for comprehensive emergency housing legislation. A model
of such emergency legislation has been developed by the Justice Initiative in
collaboration with leading housing experts from different regions of the world. We
hope that this briefing paper will give context to that model statute.
This paper has a threefold structure. Section I provides a general summary of the
most important recommendations of the UN Special Rapporteur on the right to
adequate housing. Section II looks at how some States respected the spirit of the
UN Special Rapporteur’s recommendations, and the Conclusion highlights some
key questions for consideration when developing and researching emergency
housing measures. Recommendations on how States can best protect the right
the housing are offered throughout this paper by citing the COVID-19 Guidance
Notes issued by former UN Special Rapporteur on the right to adequate housing
in the. Comprehensive recommendations regarding the protection of the right to
housing during the COVID-19 crisis can also be found in the model emergency
legislation that the Justice Initiative developed in collaboration with leading
experts in the field.
Open Society Foundations 4Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
METHODOLOGY
This paper focuses on the most common emergency measures that States5 adopted
between March and June 2020 to protect the right to housing in the context of the
COVID-19 crisis. It looks at measures aimed specifically at protecting individuals
without homes, with inadequate homes, or at risk of losing their homes, whether
rented or mortgaged, rather than examining indirect forms of protection for
individuals, such as general income support schemes.
The State measures cited in this paper are based on open source information from
both primary sources, such as legislation, and secondary sources, such as media,
NGO and corporate reports. The selection of the States cited in this paper is mainly
based on information available from civil society and government reports6 made
available to the UN Special Rapporteur on the right to adequate housing to inform
his July 2020 report “COVID-19 and the right to adequate housing: impacts
and the way forward.”7 Notably, the legislative measures cited in this paper are
for illustrative purposes only; they are not exhaustive, nor definitive, and may
not reflect the most up to date version of the adopted laws. Therefore, the tables
included in this paper should not be read as scorecards.
While examining the implementation of the adopted measures is important, doing
so would go beyond the scope of this briefing paper, which focuses on mapping the
most common emergency measures that States adopted in the first four months of
the COVID-19 pandemic, without assessing the effectiveness of the measures, nor
attesting to their full implementation.
Open Society Foundations 5Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
KEY OBSERVATIONS
To protect the right to housing during the pandemic, States adopted a piecemeal
approach. Recurring issues that threaten secure housing have emerged in States
across continents. In order to adequately protect the right to housing for everyone,
States need to adopt comprehensive emergency housing legislation.
The most common types of measures that States have adopted during the
COVID-19 crisis in order to protect the right to housing are:
Bans on evictions
Protection of tenants in rental housing
Mortgage payment deferrals
Protection of residents in informal settlements
Protection of people living in homelessness
Protection of migrants
Protection of asylum seekers
Most measures have targeted tenants and homeowners, especially through
eviction bans and mortgage payment deferrals. Despite the reality that residents in
informal settlements, homeless people, migrants, and asylum seekers are facing a
higher vulnerability, their housing needs have been largely overlooked.
The form (mandatory or voluntary), duration, and degree of protection (depending
on eligibility criteria) offered by these measures vary greatly across States, and in
some cases within States. In general, the measures do not fully respect the spirit of
the COVID-19 Guidance Notes for the protection of the right to housing.
Most measures have been adopted for the duration of the “state of emergency,”
as defined by States’ laws. Many have already expired or are about to expire by the
end of 2020.
In numerous States, eviction moratoria apply only to tenants in public or/and
private rental housing, but not mortgaged housing.
While some States took unprecedented measures to provide accommodation for
people living in homelessness, there is a lack of systematic measures to transition
them into permanent housing.
Open Society Foundations 6Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
SECTION I : GUIDANCE FROM THE UN SPECIAL
RAPPORTEUR ON THE RIGHT TO ADEQUATE HOUSING
Early in the pandemic, as housing became the frontline defense against COVID-
19,8 the 2014-2020 UN Special Rapporteur on the right to adequate housing,
Leilani Farha, issued five COVID-19 Guidance Notes for States to protect the
right to housing, highlighting that, “The right to adequate housing is not subject to
derogation in times of emergency. Limitations to this right are only permissible as
determined by law … and solely for the purpose of promoting the general welfare
in a democratic society.”9
Those five COVID-19 Guidance Notes focus on:
• Prohibition of evictions, for anyone, anywhere and for any reason, highlighting
that forced evictions and evictions that result in homelessness are a violation of
international human rights law;10
• Protecting renters and mortgage payers, based on three principles: an equitable
share of the burden of the response to the pandemic across society; preventing renters’
and homeowners’ excessive burden with housing related debt; and a proportionate
burden on banks, private landlords, and financial actors according to their resources;11
• Protecting residents of informal settlements and encampments, highlighting
their particular vulnerability in contracting the virus due to lack of access to water or
sanitation, over-crowding, and the constant threat of eviction;12
• Protecting those living in homelessness, emphasizing that homelessness is a
prima facie violation of human rights and that, in the context of the COVID-19 crisis, a
lack of access to adequate housing is not only a potential death sentence for homeless
people, but also puts the broader population at risk;13
• Protecting housing from financialization and building back a better future,
noting that as a result of COVID-19 the amount of distressed real estate is likely to
increase. This provides investors with a growing pool of “assets” that can be purchased
at low cost, thus profiting from the pandemic’s impact at the expense of people’s access
to affordable housing.14
Each Guidance Note comprises a set of specific measures for States to adopt,
with an emphasis on ensuring access to justice and effective remedies, as well as
on the effective monitoring of the implementation of the measures. The following
section reviews the most common measures that States undertook in the first four
months of the pandemic and assesses their compatibility with the COVID-19
Guidance Notes.
Open Society Foundations 7Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
SECTION II
The structure of this section is based on seven categories of housing vulnerability:
people at risk of eviction and forced eviction, tenants in rental housing,
mortgagee homeowners, residents in informal settlements, people living in
homelessness, migrants, and asylum seekers. Each sub-section highlights some
key recommendations from the COVID-19 Guidance Notes to protect the right
to housing, and contrasts them against the most common State practices. For the
complete list of recommendations, see the text of the COVID-19 Guidance Notes
referenced at the end of this paper.
EVICTION BANS
Evictions are not only inconsistent with the “stay home” policy, but forced evictions are
a violation of international human rights law, including the right to housing, as are any
evictions that result in homelessness.15
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014-2020
In response to the escalating economic insecurity that families and individuals
have been facing due to the COVID-19 crisis, which makes it difficult for them
to meet housing costs, numerous States have adopted emergency bans on
evictions—also known as eviction moratoria—in order to protect individuals
from losing their homes. Across the globe, eviction moratoria vary greatly in
form, length, and degree of protection, often contradicting the spirit of the
COVID-19 Guidance Note on the prohibition of evictions, which calls for a
temporary ban on all types of evictions, be they with or without the provision
of, and access to, legal forms of protection.16
COVID-19 Guidance Note key recommendations
and State practices
Declare an end to all evictions of anyone, anywhere for any reason, including
for non-payment of rent, rental arrears, mortgage payment default, and utility
payment arrears.17
• Numerous States banned evictions during the first four months of the pandemic.
Figure 1 illustrates the action that some States have taken, at some point between
March and June 2020, in order to protect people from being evicted from private
rental housing.
Open Society Foundations 8Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Figure 1. Bans on NATIONAL LEGISLATION SUB-NATIONAL LEGISLATION NO BAN
eviction from private Albania
rental housing Argentina
adopted between Australia
March – June 202018 Austria
The list of countries cited Belgium
in this table is for illustrative Brazil
purposes only. This list Canada
is not exhaustive, nor
Colombia
definitive.
Croatia
Cyprus
France
Germany
Hungary
India
Indonesia
Ireland
Italy
Kazakhstan
Kyrgyzstan
Malaysia
Mexico
Nepal
Netherlands
New Zealand
Peru
Philippines
Poland
Portugal
Romania
Spain
South Africa
Tajikistan
UAE
UK
US
Vietnam
Open Society Foundations 9Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
The means through which eviction moratoria have been enacted include specific
bans on evictions, increasing the length of the notice period that landlords in the
private and social rented sector are required to give tenants when they wish to
regain possession of their property,19 and/or suspending housing possession cases
for certain periods of time.
• In many cases, eviction bans apply only to individuals who meet a specific set of
criteria, such as demonstrating certain degrees of COVID-19-related financial
distress20 or not having accrued overdue rental payments before the commencement
of the pandemic.21
• Many eviction bans apply specifically to tenants in public housing or/and in private
rental housing. Fewer bans apply to those in mortgaged housing or informal
settlements and encampments. For commentary on temporary eviction bans on
homeless encampments and informal settlements, see below.
Prohibit evictions until the end of the pandemic and for a reasonable period
of time thereafter.22
• The initial length of eviction bans has ranged from the duration of the “state of
emergency”23 (as defined in the relevant national legislation) or the duration of the
pandemic,24 to periods extending past the emergency declaration up to as long as six
months.25 In some cases, the initial length of the eviction bans has been extended.26
Ensure that all evictions or foreclosures that were approved before the pandemic
commenced are suspended.27
• In numerous cases, the eviction bans’ degree of protection depends on the specific
stages of the foreclosure and eviction processes that were stayed.28 Depending on
States’ legislation, some bans prohibit the initiation of evictions (such as the service
of notice or the filing of an eviction), suspend court proceedings (evidentiary hearings
or possession judgments), halt the enforcement of eviction orders, or ban foreclosure
proceedings.
Ensure the necessary resources are available to implement this order effectively,
including resources to monitor and prevent extrajudicial evictions. 29
• To prevent extrajudicial evictions, eviction moratoria must be legally enforceable.
While many States adopted emergency legislation to ban evictions, some simply made
declarations that aim to discourage evictions without legislative measures to back such
declarations.30 In the absence of legally binding eviction moratoria and as a result of
partial shutdown of the justice system,31 abusive evictions have taken place during the
pandemic, especially affecting people living in informal settlements.32
Open Society Foundations 10Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
PROTECTION OF TENANTS IN RENTAL HOUSING
States must undertake […] specific measures immediately to ensure that all renters and
homeowners can successfully “stay home”, help flatten the pandemic curve and emerge
from the crisis whole.33
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014-2020
Some of the most common measures to protect the right to housing taken during
the COVID-19 crisis seek to enhance security of tenure. These measures include:
freezing rent increases, postponing rent payments, extending the length of a lease,
or providing financial assistance to vulnerable tenants.
The main measures taken to protect the housing rights of tenants in private rental
housing are: flexibility of the duration of the lease (by automatically extending
the duration of the contracts due to end during the lockdown, allowing premature
termination, or easing the regulations regarding contract length negotiations),
postponing rent payments, rent assistance (by reducing rent, subsiding rental
payments, or providing interest-free loans), and banning increases of residential
rental prices. Figure 2 provides a snapshot of the extent to which States adopted
these measures.
RENT PAYMENT LEASE DURATION RENT RENT NO
Figure 2. Types of DEFERRAL FLEXIBILITY ASSISTANCE INCREASE FREEZE ACTION
measures protecting the Albania
housing rights of tenants Argentina
in private rental housing
Austria
adopted between March
Belgium sub-national sub-national
– June 202034
Canada sub-national sub-national
The list of countries and Chile
legislative measures cited in
Colombia
this table are for illustrative
purposes only; they are not Czech
exhaustive. Republic
Ecuador
Absence of information does
not necessarily indicate El Salvador
absence of measures. Germany
Greece
Ireland
India sub-national
Kazakhstan
Open Society Foundations 11Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
RENT PAYMENT LEASE DURATION RENT RENT NO
DEFERRAL FLEXIBILITY ASSISTANCE INCREASE FREEZE ACTION
Kyrgyzstan
Luxembourg
Mexico
Netherlands
New Zealand
Philippines
Poland
Portugal
Spain
Trinidad and
Tobago
Venezuela
Vietnam
COVID-19 Guidance Note key recommendations
and State practices
Implement an immediate rent freeze, prohibiting any increases in rental costs
including any adjustments for inflation, during the pandemic and for a reasonable
period thereafter.35
• In States that have implemented rent increase freezes, their initial duration has varied
from three36 to six months.37 In some cases, rent increases that were notified before the
introduction of the emergency legislation but which had not yet come into effect were
still allowed.38
Prohibit the cancelling of rental contracts during the pandemic and for a reasonable
period thereafter, except in the context of criminal behaviour, particularly where the
behaviour will harm other tenants.39
• Some States have adopted legislation that automatically extends rental contracts until
the end of the emergency period.40 Other countries have allowed for the premature
termination of rental contracts41 or, more commonly, prohibited the termination of
rental contracts for a specific period of time, up to six months42 or one year.43
States must ensure housing affordability for tenants whose incomes decline as a result of
COVID-19 […] and ensure that tenants affected by the crisis do not have to pay more
than 30 percent of their monthly net income on housing costs.44
• To ensure housing affordability for vulnerable tenants, a broad range of measures
has been taken. For example, rent payments have been deferred for various periods
Open Society Foundations 12Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
of time: from 30 days in the Philippines (without incurring interest and penalties),45
to three months in El Salvador,46 to six months in Venezuela,47 and over two years in
Germany (with interest on arrears permitted).48 In Zambia, authorities appealed to
landlords to waive rental payments during the COVID-19 crisis but, reportedly, this
was not backed by legislation.49 In numerous countries, penalties for rent arrears were
not allowed; however, compensatory interest was permitted. In Austria, for example,
there is a default interest of four percent, which has to be paid in addition to the
overdue rent.50
• Some States have opted for measures that provided financial assistance for vulnerable
tenants. For instance, in Greece affected employees were granted a 40 percent rent
reduction for the month of April,51 while in Spain large-scale landlords were required
to ease rental costs for vulnerable residents and affected employees could apply for
zero-interest credits to cover up to six months of rent.52 In Portugal, interest-free loans
were made available to support the difference between the amount of monthly income
due and the amount resulting from the application of a maximum rate of 35 percent
to household income, without resulting in a household income lower than the social
support index.53 In Trinidad and Tobago,54 and at the sub-national level in Belgium55
and Canada,56 temporary rent supplements were introduced, paid either to vulnerable
tenants or directly to landlords. Notwithstanding such measures, the recommended
cap on monthly housing costs, 30 percent of tenants’ monthly net income, was
virtually ignored.
• Regarding public housing rent, measures ranged from temporarily waiving rental
payments,57 to social housing providers and tenant associations devising payment
plans for struggling tenants.58
MORTGAGE PAYMENT DEFERRALS
States must adopt policies with respect to mortgage payments for populations who suffer
financial setbacks during the pandemic.59
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014-2020
Mortgage payment deferrals—also known as “mortgage holidays” or “mortgage
moratoria”—have been used across many jurisdiction as an emergency measure
to protect mortgage payers from losing their homes. Such deferrals allow for
a temporary delay in the payment of debt in cases where people experienced
financial difficulties that precluded them from fulfilling their mortgage obligations.
Open Society Foundations 13Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
COVID-19 Guidance Note key recommendations
and State practices
States must […] adopt policies with respect to mortgage payments for populations who
suffer financial setbacks during the pandemic. At a minimum it is imperative that States
ensure Banks and other lenders re-negotiate mortgage payments with those affected by
COVID-19, so that no more than 30 per cent of household income is devoted to debt
servicing during the pandemic and for a reasonable time thereafter. 60
• While in many States mortgage payers did not have the option to apply for a temporary
suspension of mortgage payments, across the States that adopted such policies there
have been two main categories of mortgage moratoria for vulnerable borrowers:
• Voluntary moratoria − adopted by some banks or bank consortiums, often based
on negotiations with governments or as a result of recommendations made by
central banks or national regulatory authorities; or
• Imposed moratoria − which impose mandatory obligations at the State level,
as a result of States’ legislation or national regulatory authorities mandatory
decisions, to allow borrowers to defer their payments.
Figure 3 illustrates the types of mortgage moratoria adopted in some States. For
the purpose of this paper, “no systemic action” means that although no measures
were adopted to offer widespread protection for mortgage payers, some banks
nevertheless might have decided, on their own initiative, to offer mortgage
payment deferrals.
NATIONAL SUB-NATIONAL NO
Figure 3. Mortgage LEGISLATION LEGISLATION BAN
moratoria adopted Albania
between March–June Argentina
202061
Austria
The list of countries cited in Bosnia and
this table is for illustrative Herzegovina
purposes only. Croatia
This list is Colombia
not exhaustive.
Cyprus
Czech Republic
Ecuador
El Salvador
Finland
Georgia
Hungary
Open Society Foundations 14Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Ireland
Italy
Kazakhstan
Kenya
Latvia
Lithuania
Mexico
Moldova
Namibia
North Macedonia
Philippines
Portugal
Romania
Spain
Ukraine
UK
Vietnam
The initial length of mortgage payment deferrals has ranged from one,62
three,63 six,64 or nine months65 to up to one66 or even two years.67 In some
cases the provisions related to the duration of mortgage moratoria have been
revisited and extended.
• Where mortgage payment deferral schemes have been introduced, there has been
great variety regarding the degree of protection offered. Some mortgage moratoria
allow for the postponement of payments to be provided only for those who prove that
more than a third of their income has been lost.68 In numerous cases, the suspension
of mortgage payments applies strictly to borrowers who maintained their accounts in
good standing before the onset of the pandemic.69 There have been instances in which
banks have refused to provide assistance with mortgage payments due to other income
support measures that were put in place by the government.70
No tenant or homeowner should accrue unsustainable debt as a result of any of the
proposed measures[…].71
• While some mortgage relief policies have suspended the payment of principal and
interest,72 numerous mortgage payment moratoria have suspended only the payment
of the principal while allowing interest accrual.
Open Society Foundations 15Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
PROTECTION OF RESIDENTS IN INFORMAL SETTLEMENTS
In order to prevent the spread of COVID-19, States across the world are asking and,
in some cases, legislating that people “stay home”. This is based on the assumption that
one’s home provides protection against contracting and spreading the virus. This is not
always the case. 73
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014–2020
Many residents of informal settlements and encampments live in highly precarious
conditions, where not only is it impossible to practice physical distancing, due
to high population density, but there is also little or no access to water, other
utilities, and sanitary facilities.74 In response to the pandemic, several States have
specifically adopted measures regarding the protection of residents of informal
settlements and/or provided additional funds to strengthen social services and
develop emergency measures for such residents.75 Across the globe, nevertheless,
a great part of the support for residents of informal settlements has been provided
by civil society organizations.76
COVID-19 Guidance Note key recommendations
and State practices
Declare an end to all forced evictions of informal settlements and encampments. Ensure
the necessary resources are available to implement this order effectively, including
resources to monitor and prevent extrajudicial evictions.77
• In some States, eviction moratoria have specifically banned forced evictions from
and/or demolitions of informal settlements and encampments. The Philippines,
for example, adopted legislation to postpone all demolition and eviction activities
during the community quarantine.78 In some instances, such as in South Africa, even
where such bans on forced evictions were in place, they were, nevertheless, carried out
in the context of informal settlements.79 In India, Kenya, Ethiopia, and Nigeria, which
did not adopt national moratoria on evictions, people living in informal settlements
have been subject to mass forced evictions and home demolitions during the worst
period of the crisis.80
Ensure all residents of informal settlements/encampments have access to an adequate,
affordable, and proximate supply of water, toilets, showers, sanitation services, soap,
hand sanitizer, disinfectants, and masks.81
• Ensuring access to water and sanitation facilities has been one of the most
common measures that States adopted to protect the rights of people living in
informal settlements and encampments. For example, in Ireland the government
directed authorities to put in place extra sanitary facilities and additional mobile
accommodation, as well as ensure uninterrupted flow of running water, where there
is overcrowding, such as in Travelers’ communities.82 Similarly, in Zambia,83
Open Society Foundations 16Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Argentina,84 Mexico,85 and Chile,86 governments adopted measures to ensure that
there is uninterrupted access to water and/or provided extra food, hygiene, and
health services.
PROTECTION OF PEOPLE LIVING IN HOMELESSNESS
COVID-19 has exposed the myth of individualism, revealing the ways in which our
collective wellbeing depends not only on our own ability to “stay home”, but the ability of
others to do the same.87
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014–2020
The pandemic turned homelessness into a public health priority for which
exceptional measures were put in place in order to temporarily house, isolate, and
keep people safe. The crisis has further exposed the housing vulnerabilities that
people living in abusive homes face, particularly women, children, and youth who
risk becoming homeless if they leave their abusers.
At the height of the crisis, in some European States, governments’ measures have
led to an overwhelming drop in the number of people living on the streets.88 For
example, according to UK government figures, by mid-April more than 90 percent
of rough sleepers in England were offered emergency accommodation.89 The
pandemic could have been a watershed moment for adequately addressing the
systematic issue of homelessness, but few States took this moment to review their
flawed housing policies.
COVID-19 Guidance Note key recommendations
and State practices
Immediately provide accommodation to all homeless people living ‘rough’ or on the
streets with a view to transitioning them to permanent housing so that they do not return
to a situation of homelessness once the pandemic is over.90
• While numerous States have taken no additional steps to protect homeless people
beyond measures already in place before the pandemic,91 some provided immediate
temporary accommodation to people sleeping rough. This response has taken
numerous forms, including requisitioning hotels to host homeless people, as was
done in London92 and in some municipalities in Belgium, 93 Czech Republic,94 and
France.95 Other municipalities rented empty social homes and provided them to
homeless people, as in Belgium’s Flemish region,96 or sheltered people in improvised
emergency shelters—such as in Spain97, the Philippines,98 and Indonesia99—or
extended the opening times of winter emergency shelters, as in Denmark.100 But only
in a very few cases have measures been taken to transition homeless persons into
permanent housing.101
Open Society Foundations 17Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Ensure that women, children and youth who may need to leave a household due to
violence do not fall into homelessness and are provided with adequate alternative
accommodations that ensure safety and provide access to water/sanitation, food, social
supports, health services and testing for COVID-19.102
• Since the beginning of the pandemic, there has been a surge in reported cases of
domestic violence, particularly against women, girls, and LGBT+ people. This was
coupled with an increase in demand for emergency shelter for those fleeing abuse.103
To meet this demand, some States, such as Italy,104 Canada, Australia, France, and the
UK,105 allocated additional financial support for shelters and organizations providing
services to those fleeing abuse.106 In Italy, the application procedures for access to
shelters, housing, and anti-violence centers were simplified and prefectures were
instructed to identify new housing solutions for women victims of violence.107 In
Canada, in Quebec and Ontario, domestic violence shelters were deemed essential
services and had to remain open during the lockdown.108 To expand the capacity of
shelters, some States re-purposed other spaces, such as empty hotels, to accommodate
quarantine needs.109
• In many States, refuges for survivors of domestic violence often depend on government
housing benefit payments for financial support. This means that many shelters cannot
accept survivors who are subject to immigration control and have no entitlement to
welfare benefits (known in the UK as “no recourse to public funds”). Because of their
immigration status, migrant women have faced particular barriers to getting critical
services, and may resist going to the authorities due to risk of detention, deportation,
or separation from their children. By June 2020, Wales and Scotland instructed local
authorities to ensure safe shelter for all of those fleeing domestic abuse during the
pandemic, regardless of their immigration status. However, England and Northern
Ireland have not issued such explicit instructions.110
PROTECTION OF MIGRANTS
No migrant worker or domestic worker should be left in a situation of homelessness.111
Leilani Farha, UN Special Rapporteur on the right to adequate housing, 2014–2020
Although numerous States adopted laws and policies to ensure respect for the
right to housing during the COVID-19 pandemic, few adopted formal policies
that address migrants’ housing vulnerabilities, particularly those faced by
undocumented migrants whose status does not allow them to seek judicial
relief.112 In numerous States, migrant workers were asked to return to their country
or place of origin despite the closing of borders or the suspension of national
and international travel.113 As the current UN Special Rapporteur on the right to
adequate housing, Balakrishnan Rajagopal, noted:
Open Society Foundations 18Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
[Migrants] have been particularly exposed to the economic impact of lockdowns and the
closing of workplaces. Many lack a permanent address, official work authorizations or
work contracts and are thus often excluded from national social protection systems or
face significant barriers to justice for violations related to work and housing rights.114
COVID-19 Guidance Note key recommendations
and State practices
Where migrant workers or domestic workers are housed in their place of work or in
accommodation provided by their employers, States must ensure that they can either
remain housed free of charge or at a rent affordable to them […] If accommodation
cannot be reasonably provided by their employers, the State is obliged to provide affected
migrant and domestic workers with alternative secure accommodation. 115
• While some States required local authorities to utilize alternative powers and funding
to assist people who have no entitlement to welfare benefits but who require shelter,
such as migrants in the UK,116 others adopted legislation that allowed migrants who
applied for residency before the state of emergency to receive temporary residency
rights, as was done in Portugal.117 In India, despite the central government’s
prohibition on the eviction of migrant workers for non-payment of rent, migrant
workers faced the major, even deadly, challenges of hunger, illness, and destitution.118
PROTECTION OF ASYLUM SEEKERS
Due to the COVID-19 pandemic, States across the globe have closed their borders,
adopted travel bans, and imposed restrictions on human mobility.119 This has
greatly affected asylum seekers during and after the lockdown,120 as many States
have suspended asylum administrative procedures.121
COVID-19 Guidance Note key recommendations
and State practices
Declare an end to all evictions of anyone, anywhere for any reason until the end of the
pandemic and for a reasonable period of time thereafter.122
• A common measure undertaken by States has been to extend the validity of asylum
seekers’ documents, even if expired.123 However, this only addressed asylum seekers’
vulnerabilities from an immigration perspective. In Greece, municipalities did
not offer alternative temporary accommodation and the government resumed the
plan to discontinue housing provisions to recognized refugees and to those whose
asylum applications had been rejected.124 In parts of France, asylum seekers living in
makeshift tents were subjected to forced evictions.125
Open Society Foundations 19Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
• Conversely, in some cases governments have adopted temporary moratoria on
removals and provided housing assistance. In France, for instance, reception centers
were instructed not to remove asylum seekers currently accommodated, including
those with rejected applications.126 Similarly, in the UK, evictions from asylum
accommodation were suspended for at least three months.127 In the medium term,
however, temporary housing support that excludes financial and social services
support may drive people into homelessness and destitution.
• Notably, Portugal has taken the unprecedented measure to give temporary residency
rights to asylum seekers who applied for residency before the state of emergency. This,
in effect, has given them access to the country’s national health service, bank accounts,
and work and rental contracts for at least three months.128
Open Society Foundations 20Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
CONCLUSION: OPEN QUESTIONS
The pandemic has changed the meaning of “home” fundamentally. Stay-at-home
orders – which will continue to be issued periodically as the virus likely spikes during the
coming months – compel the reimagination of what a home is: it is not only a refuge from
the virus and a safe place for physical distancing; it is also a place of paid and unpaid
work […] it is a childcare centre and a school […]. The combination of so many functions
in a single entity – the home – should lead to a basic rethinking of the right to adequate
housing and a greater recognition of its centrality.129
Balakrishnan Rajagopal, the current UN Special Rapporteur
on the right to adequate housing
This briefing paper mapped the most common legislative measures that States
adopted to prevent people from losing their homes during the first four months
of the pandemic. But now, nine months since the World Health Organization
declared COVID-19 a pandemic, many of the emergency response measures to
this health and economic crisis have been subject to reviews or termination. While
the emergency context in which the cited measures were adopted provides a real
challenge for long-term planning, research, legislative, policymaking work should
address the following questions regarding the protection of the right to housing
during this ongoing pandemic:
The duration of emergency measures
• What is the best way to determine the duration of emergency housing measures?
Should there be a specific time limit or should their duration be determined according
to a number of indicators related to economic recovery and State assistance for the
business and financial sector? What can be learned, in this respect, from the 2007-8
financial crisis?
The strength of the measures
• How can States be persuaded to adopt legally binding measures that protect the right
to housing for all during emergencies? Are there circumstances under which voluntary
measures would be more effective?
The implementation of the measures
• To what extent have the adopted measures actually been implemented on the ground
and how effective is their monitoring and evaluation?
• Do States have measurable goals and timelines?
• Are States acting with requisite urgency?
• Is non-discrimination ensured?
• Is non-compliance with the adopted measures sanctioned appropriately?
Open Society Foundations 21Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Maximum available resources
• Are adequate resources, in keeping with human rights obligations, being mobilized to
ensure access to adequate, affordable, safe housing for all?
Effective remedies
• Are there effective legal remedies in place to address the violation of the measures and
ensure the realization of the right to housing?
The impact of the measures
• What has been, so far, the impact of the measures and what unique aspects of the
pandemic were successfully addressed through policy or legislative responses?
• Housing injustice is intimately linked with racial and gender injustice. Have these
measures, or the absence thereof, had a disproportionate impact on vulnerable
communities based on race, ethnicity, gender, sexual orientation, or age? Is
disaggregated data on housing rights violations collected in a systemic manner so
that States have a better understanding of the populations that are most vulnerable to
housing insecurity?
• Are those most in need provided for?
The sustainability of the measures
• How can the sustainability of the measures be preserved, especially given that they
contribute to the progressive realization of the right to housing, and given that going
back to the pre-pandemic state of affairs could amount to a violation of the principle of
non-retrogression for economic and social rights?
The mainstreaming of the right to housing in recovery plans and
budgets
• How can States and international financial institutions best ensure that the right to
housing is used to shape the post-COVID-19 crisis recovery plans?
As the world continues to battle the COVID-19 pandemic and related economic
downturn, how States answer these questions will determine not just whether
the right to housing will be realized at this critical moment, but whether the virus
can be defeated and a rights-based order can re-emerge in its wake. The model
emergency housing legislation that the Justice Initiative developed in collaboration
with leading experts on the right to housing provides a comprehensive blueprint
for States to do so.
Open Society Foundations 22Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
Endnotes
1 See https://www.justiceinitiative.org/topics/economic-justice.
2 The COVID-19 Guidance Notes were issued by the former UN Special Rapporteur
on the right to adequate housing, Lailani Farha, who held this mandate between 2014
and 2020. The current UN Special Rapporteur on the right to adequate housing is
Balakrishnan Rajagopal, who assumed this function on May 1, 2020.
3 While the adopted measures have contributed, to a certain extent, to the protection
and fulfillment of the right to housing, the dominant discourse around the measures
has focused primarily on economic reasoning rather than human rights.
4 Balakrishnan Rajagopal. “Report of the Special Rapporteur on adequate housing as
a component of the right to an adequate standard of living, and on the right to non-
discrimination in this context: COVID-19 and the right to adequate housing: impacts
and the way forward,” A/75/148, July 27, 2020, available at: https://undocs.
org/A/75/148, p. 5, para. 5.
5 The term “State” refers to both legislatures and different levels of government,
including at national, state, regional, and municipal levels.
6 UN Special Rapporteur on the right to adequate housing, 2020, “Call for input:
COVID-19 and the right to housing,” available at: https://www.ohchr.org/EN/
Issues/Housing/Pages/callCovid19.aspx; OHCHR, 2020, “Joint questionnaire on
COVID-19 and human rights,” available at: https://www.ohchr.org/EN/HRBodies/
SP/Pages/Joint-questionnaire-COVID-19.aspx.
7 Balakrishnan Rajagopal, “COVID-19 and the right to adequate housing: impacts and
the way forward.”
8 Leilani Farha, UN Special Rapporteur on the right to adequate housing 2014-2020,
COVID-19 Guidance Note: Prohibition of evictions, updated April 28, 2020, available
at: https://www.ohchr.org/Documents/Issues/Housing/SR_housing_COVID-19_
guidance_evictions.pdf, p. 1.
9 Ibid.
10 Ibid.
11 Leilani Farha, UN Special Rapporteur on the right to adequate housing 2014-2020,
COVID-19 Guidance Note: Protecting renters and mortgage payers, April 8, 2020,
available at: https://www.ohchr.org/Documents/Issues/Housing/SR_housing_
COVID-19_guidance_rent_and_mortgage_payers.pdf.
12 Leilani Farha, UN Special Rapporteur on the right to adequate housing 2014-2020,
COVID-19 Guidance Note: Protecting residents of informal settlements, April 23, 2020,
available at: https://www.ohchr.org/Documents/Issues/Housing/SR_housing_
COVID-19_Guidance_informal_settlements.pdf.
13 Leilani Farha, UN Special rapporteur on the right to adequate housing 2014-2020,
COVID-19 Guidance Note: Protecting those living in homelessness, April 28, 2020,
available at: https://www.ohchr.org/Documents/Issues/Housing/SR_housing_
COVID-19_guidance_homeless.pdf.
14 Leilani Farha, UN Special Rapporteur on the right to adequate housing 2014-2020,
Open Society Foundations 23Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
COVID-19 Guidance Note: Protecting housing from financialization and building back a
better future, April 28, 2020, available at: https://www.ohchr.org/Documents/Issues/
Housing/SR_housing_COVID-19_guidance_finacilization.pdf.
15 Leilani Farha, Prohibition of evictions.
16 Forced eviction is “the permanent or temporary removal against their will of
individuals, families and/or communities from the homes and/or land which they
occupy, without the provision of, and access to, appropriate forms of legal or other
protection” (Committee on Economic, Social and Cultural Rights, General Comment
No. 7 (1997) on the right to adequate housing: forced evictions). For a more detailed
legal commentary on “forced evictions,” see: UN Habitat, 2014. Forced Evictions Fact
Sheet, No. 25/Rev.1, available at: https://www.ohchr.org/Documents/Publications/
FS25.Rev.1.pdf.
17 Leilani Farha, Prohibition of evictions, para. 1 and 4.
18 Albania – Albania’s Institutions response for the Joint questionnaire by Special
Procedure mandate holders on “Protecting human rights during and after the
COVID-19”, available at: https://www.ohchr.org/Documents/HRBodies/SP/
COVID/States/ALBANIA.docx, p. 36.
Argentina – Decreto 320/2020, “Emergencia publica alquileres – suspension
de desalojos – Prorroga de contractors – Congelamiento de precios”, Publicada
en el Boletín Oficial del 29.03.2020, Número: 34342, Página: 5, March 29,
2020, available at: http://servicios.infoleg.gob.ar/infolegInternet/verNorma.
do?id=335939; Buenos Aires Times, “Fernández freezes rent prices, mortgage
payments by decree”, March 30, 2020, available at: https://www.batimes.com.ar/
news/argentina/fernandez-freezes-rent-prices-mortgage-payments-by-decree.
phtml.
Australia – Wester Australia Government. 2020. “COVID-19 coronavirus: Western
Australian Government response”, available at: https://www.wa.gov.au/organisation/
department-of-the-premier-and-cabinet/covid-19-coronavirus-western-australian-
government-response; New South Wales Government. 2020. “Residential tenancy
moratorium on evictions during COVID-19”, available at: https://www.fairtrading.
nsw.gov.au/resource-library/publications/coronavirus-covid-19/property/
moratorium#fortenants; Queensland Government. 2020. “The residential rental
hub”, available at: https://www.covid19.qld.gov.au/the-hub.
Austria – Balakrishnan Rajagopal, “COVID-19 and the right to adequate housing:
impacts and the way forward”, p. 7; Amnesty International. “COVID-19 and the right
to housing submission to the UN Special Rapporteur on adequate housing”, June
2020, available at: https://www.ohchr.org/Documents/Issues/Housing/COVID19/
CivilSociety/AmnestyInternational.docx, p. 7.
Belgium – Although the bans on evictions cover the entire country, given the
country’s administrative system, the relevant laws and decisions were adopted at
sub-national level. See, for example: RTBF. “Coronavirus en Belgique: les expulsions
des logements suspendues en Wallonie et à Bruxelles”, March 18, 2020, available
at: https://www.rtbf.be/info/dossier/epidemie-de-coronavirus/detail_coronavirus-
en-belgique-les-expulsions-des-logements-suspendues-en-wallonie-et-a-
Open Society Foundations 24Protecting the Right to Housing during the COVID-19 Crisis Briefing Paper
bruxelles?id=10461517; RTBF. “La Flandre suspend elle aussi les expulsions”,
March 20, 2020, available at: https://www.rtbf.be/info/belgique/detail_la-flandre-
suspend-elle-aussi-les-expulsions?id=10463317; Squire Patton Boggs. “COVID-19
government measures in real estate - Europe”, April 3, 2020, available at: https://
www.squirepattonboggs.com/-/media/files/insights/publications/2020/04/
covid19-government-measures-in-real-estate-europe/covid19-government-
measures-in-real-estate-europe.pdf, p. 29.
Brazil – Habitat for Humanity. “COVID-19 and the right to housing submission to
the UN Special Rapporteur on adequate housing”, June 2020, available at: https://
www.ohchr.org/Documents/Issues/Housing/COVID19/CivilSociety/HabitatBrazil.
docx, p. 1 (“The Brazilian government did not take measures to prohibit eviction of
low-income, vulnerable communities during the COVID-19 pandemic. In addition,
President Bolsonaro vetoed an excerpt of a bill passed in Congress that suspended
eviction of overdue tenants”).
Canada – see, for example: Government of British Columbia, Municipal Affairs
and Housing, “Supporting renters, landlords during COVID-19”, April 22, 2020,
available at: https://news.gov.bc.ca/releases/2020MAH0048-000561; Government
of Quebec, “Arrêté numéro 2020-005 de la ministre de la Santé et des Services
sociaux en date du 17 mars 2020”, March 17, 2020, available at: https://cdn-
contenu.quebec.ca/cdn-contenu/adm/min/sante-services-sociaux/publications-
adm/lois-reglements/AM_numero_2020-005.pdf?1584487700; Rate Hub.
“Renting and COVID-19: What support is available in Canada?”, April 7, 2020,
available at: https://www.ratehub.ca/blog/renting-and-covid-19/.
Colombia – Diario AS. “Arriendos en Colombia: cuáles son las
medidas y los cánones de arrendamiento”, April 1, 2020, available
at: https://colombia-as-com.cdn.ampproject.org/v/s/colombia.
as.com/colombia/2020/04/01/tikitakas/1585706732_653743.
amp. html?usqp=mq331AQIKAGwASDAAQE=&_
js_v=0.1#aoh=15858672394647&_
ct=1585867330578&csi=1&referrer=https://www.google.com&_tf=%25D.
Croatia – Radio Mreznica. “Vlada donosi paket mjera: Bez ovrha, deložacija, 63 mjere
za gospodarstvo, pokrenuli web stranicu za informiranje”, March, 17 2020, available
at: https://radio-mreznica.hr/vlada-donosi-paket-mjera-bez-ovrha-delozacija-63-
mjere-za-gospodarstvo/.
Cyprus – Offsite. “Ποιους ενοικιαστές αφορά το διάταγμα για αναστολή εξώσεων”,
March 26, 2020, available at: https://www.offsite.com.cy/eidiseis/politiki/poioys-
enoikiastes-afora-diatagma-gia-anastoli-exoseon.
France – European Federation of National Organisations working with the homeless
(FEANTSA), “COVID-19 and the right to housing submission to the UN Special
Rapporteur on adequate housing”, June 2020, available at: https://www.ohchr.
org/Documents/Issues/Housing/COVID19/CivilSociety/FEANTSA.docx, p. 3;
Alex Ledsom. “France extends eviction ban to help needy”, Forbes, May 17, 2020,
available at: https://www.forbes.com/sites/alexledsom/2020/05/17/france-
extends-eviction-ban-to-help-needy/#3942a8c27fea.
Open Society Foundations 25You can also read
